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Herbert v. Hallett.

received the goods into his store, on their return, that most of the cargo was much damaged, and the voyage so broken up as not to be worth pursuing.

On these facts, the jury found a verdict for the defendant.

A motion was made for a new trial, on the ground that "the plaintiff was entitled to recover either a to- (*95) tal or an average loss.

Hopkins, for the plaintiff.
Pendleton and Hamilton, contra.

RADCLIFF, J. A motion has been made for a new trial, and the general question is,

Whether the plaintiff be entitled to recover any, and what part of the freight insured.

An insurer on freight engages that it shall be in the power of the insured to earn his freight, that is, that the subjects necessary to the earning of freight, the ship and cargo, shall not be injured by any of the perils insured against, so that no freight can be earned. If the ship and cargo both remain in a state to continue the voyage, it is in his power to earn freight, and he ought to proceed. If by any injuries, either to the ship or cargo, the voyage be so broken up that no freight can be earned, the plaintiff ought to recover a total or partial loss, as he may or may not have earned freight, pro rata itineris.

If the injury be confined to the ship, and that can be repajred in a reasonable time, it is the duty of the owner to make such repairs, and to continue the voyage and earn his freight. On the other hand, if the injury be sustained by the goods alone, and the ship be in a capacity to proceed, the owner of the ship will still be entitled to perform the voyage, and recover his freight, unless the goods be physically destroyed.

If these principles be correct, the first inquiry in the present case is, whether the ship was in a capacity to proceed, or whether the injury was such as might have been repaired in a reasonable time, in relation to the intended voyage, and at a reasonable expense. The circumstance of the ship

Herbert y. Hallet.

being obliged to return to the port from whence she [*96] sailed, does not alter the application of *this rule.

The voyage had actually commenced on which the right to freight attached, and the return to New York was the same as if she had been driven into

any

other port. It appears that she was, in fact, repaired at a moderate expense, within a fortnight, and proceeded on another voyage. If the goods were in a condition to be reshipped, a detention for that period would not, in my opinion, be sufficient to justify an abandonment of the voyage. It was still incumbent on the owner to use due diligence in endeavoring to repair her, instead of which it appears that he suffered the vessel to remain two or three weeks, without taking any measure for that purpose, and, for aught we know, without any wish or idea of pursuing the voyage. On account of the ship, therefore, I think there was not such an impediment as would authorize an abandonment of the voyage, and prevent her from earning freight.

2. With regard to the cargo; its total value, or the degree of injury it received, cannot be ascertained, from any thing stated in the case. The lumber could not have been injured, but all the other articles were perishable in their nature, and probably so much damaged as, according to one of the witnesses, to render the voyage, on their account, not worth pursuing. Still they physically remained, and were either retained by the shippers, or abandoned to the underwriters, and sold for their benefit. As between the owner of the ship and the proprietor of the goods, there was not, therefore, a total loss. Between them no loss is total, where the property remains, or any part is saved, and taken by the owner to his own use. It requires an absolute destruction of the subject to render the loss, in this respect, total. That not being the case, with regard to any of the property, in this instance, and the ship being in a condition to be repaired, and the plaintiff having a right so to do, and to perform the

voyage, he ought to have proceeded, and the owners (97] had no right to demand of him the restoration of the

Herbert v. Hallett.

goods, without payment of the freight. By delivering up the property to them, he relinquished his title to freight, as against the defendants, and cannot call on them for it.

It is, therefore, unnecessary to decide whether an abandonment of the freight, under the circumstances of the present case, was requisite. It is equally unnecessary to examine whether any freight was earned, pro rata itineris. The latter is now a question between the plaintiff and the shippers only. If any part was earned, and has not been relinquish. ed, he has his remedy against them. It is not a claim against the underwriters, who, in either case, are not liable for it. I am, however, inclined to think, that although the right to freight is deemed to commence from the loading of the goods on board, it is a defeasible right, depending on the success of the voyage; and that, in this case, no part of the iter being performed, to any beneficial purpose, no freight was earned, whether we regard the distance or the price as determining the rule.

Deciding the case on these principles, the correctness of the judge's charge at the trial is not material to be farther considered. It was more favorable to the plaintiff than the result of my opinion, and the jury having found for the defendant, I think their verdict ought not to be disturbed.

KENT, J. I amn of opinion that the plaintiff has not shown himself entitled to a total loss, or facts sufficient to disturb the verdict. He must show that he was prevented, by one of the perils insured against, from completing his contract for carrying the cargo from New York to the Havanna. But he has not sufficiently shown this. He lost the freight of the voyage more by his own negligence or folly, than by the perils of the sea. The brig was not so disabled but that, with a moderate repair, she could have performed the voyage. The plaintiff *delayed a fortnight before he [*98] sent her to be repaired. She was then repaired, in a fortnight, for 44 pounds and 11 shillings, and soon proceeded on a different voyage.

If a freighted ship becomes disabled, during her voyage, Vol. III.

17

Herbert v. Hallett.

by a peril insured against, the master has his option of two things either to refit, in a reasonable time, or to hire another ship to carry the goods; and if he does this, or if the shipper will not consent to it, he will be entitled to the whole freight. If he does neither, he can, at best, recover only his freight pro rata, of the owner of the cargo. This was a point setiled in the case of Luke v. Lyde, (2 Burr. 887,) and by the authorities there cited.

What is convenient time to refit must depend upon the particular voyage to be performed, and the time and place of the accident. No definite time is prescribed, nor does the matter appear to be susceptible of any definite rule. Under the circumstances of the present case, I cannot undertake to say that two weeks was an unreasonable time, and that the verdict ought, for that reason, to be set aside.

If the plaintiff neglected to refit, in order to entitle himself to full freight, against the shipper of the goods, he ought not to recover it of the insurer. The vessel might have earned the freight, notwithstanding the accident at the Hook, if the plaintiff had made use of due diligence in repairing her. The vessel was refitted at a small expense, and in a condition to go to sea on another voyage. We must presume she might have gone upon the voyage insured, with the same facility, and probably with much greater promptness.

If the plaintiff, with so slight an injury to his vessel, and after having equipped and despatched her so soon on another voyage, could recover his full freight in this case, his vessel would be earning the freight of two voyages, nearly in as short a time as she could really have performed one. It would be a lemptation to infinite abuse and fraud, to allow

a plaintiff, under such circumstances, to recover a [*99) total "freight upon his policy. It would be allowing

him a premium for his negligence, in not refitting, and performing the voyage insured. It appears to me that the same peril, and to the same extent, ought to exist, to anthorize a recovery on a policy on freight as on a policy on the ship; and that before the insured can recover, in either case, as for

Herbert v. Hallett.

a total loss, the ship must be rendered unable to perform the voyage. A slight accident, such as the splitting of a sail, or loss of a rudder, soon after the vessel breaks ground, and when those accidents can be easily and speedily repaired, would not authorize a demand for a total loss. If, in a like case, he could not recover a total loss, on a policy on the ship, I see no good reason why there should be a recovery for a total loss of freight. It would involve the absurdity of assuming, in the one case, that the voyage was lost by the peril, and, in the other case, that it was not lost. If the policy had been upon the ship, there would not have been a pretence for a total loss; and I am of opinion there is no ground for a claim of total loss of freight.

I have put out of view the condition of the cargo, or any question of fraud, that may have been suggested in respect to it. There is no doubt but that the vessel was interrupted in her voyage, and that the accident arose without any fault to be imputed to the master.

The person who lets his ship to hire, is not thereby an insurer of the cargo; and I have, therefore, supposed the present question not to be influenced by any considerations resulting from the damage to the cargo.

The next question is, whether the plaintiff is not entitled to an average loss, as his vessel was deprived, by a peril insured against, of the opportunity of earning freight, at least, for a few days. It is said (Luke v. Lyde,) that a plaintiff in such a case, is not obliged to refit, to entitle himself to a ratable freight from the shippers. If so, then whatever

freight he was entitled to from them, we are to intend (*100] he has received, as he held *the lien for it in his own

hands. With respect to the freight for the residue of the voyage, I can easily perceive that a plaintiff, in a case like the the present, may be justly entitled to the indemnity, from the insurer, for the loss of freight, during the tiine the vessel was necessarily interrupted in the voyage. But he cannot justly be entitled to freight beyond that particular time, since his neglect to repair and proceed in the voyage

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